Washington, D.C. — Following a recent, disturbing decision from Trump administration antitrust enforcers to dismiss an important Robinson-Patman Act enforcement case alleging illegal price discrimination by PepsiCo in favor of a big-box retailer, the American Economic Liberties Project today released a new practice guide ** detailing how small businesses and trade associations can take action under federal and California price discrimination and unfair competition laws.

Co-authored by former Federal Trade Commission enforcers Catherine Simonsen and Shaoul Sussman, “Taking on Power Buyers: Expedient, High-Impact Enforcement of Federal and California Price Discrimination Laws” focuses on some of the most straightforward legal strategies available to hold dominant retailers accountable for anticompetitive price discrimination tactics.

“Our federal and state price discrimination laws are the other, ‘better half’ of our nation’s antitrust laws, yet they have barely been enforced for over 50 years,” said Catherine Simonsen, Senior Fellow at the American Economic Liberties Project and Partner and Co-Founder of Simonsen Sussman LLP. “It’s no coincidence that in that time period, corporate consolidation and rent-seeking have gone through the roof.  It’s not too late to turn the tide, but we need to act quickly and collectively to start enforcing these laws again. Shaoul and I wrote this practice guide with the intention that it be a roadmap and inspiration for victims of price discrimination and their counsel to take bold and badly-needed action to restore competitiveness to our markets.”

Acknowledging that antitrust litigation can be time-consuming and expensive, the practice guide outlines potential expedient, high-impact paths for legal action by a disfavored retailer or retailer association against a favored buyer for certain forms of price discrimination under federal and California law. In other words, this document is not intended as a comprehensive guide to enforcement under the Robinson-Patman Act (RPA) and California law and focuses instead on more straightforward actions against power buyers. This practice guide also explains how private litigants can use California’s Unfair Competition Law (UCL) to bring an action against a power buyer for a per se violation of the RPA—a cause of action that may not be directly available under the RPA itself.

Examples of actionable conduct include:

• Promotional allowances provided to a favored retailer—whether in the form of after-the-fact rebates or upfront discounts to the purchase price—not made available to competing retailers on proportionally equal terms;
• Secret price discounts given exclusively to the favored retailer; and
• Promotional signs, displays, or ads that benefit the favored retailer but are paid for or subsidized by the supplier and not offered on proportionally equal terms to competing retailers.

**The information provided in this practice guide is for general informational purposes only. It is not intended as legal advice and does not create an attorney-client relationship, nor is it a solicitation to offer legal advice, and it should not be taken as a substitute for seeking advice from a qualified legal professional. You should not take action based on the information contained herein without seeking professional legal counsel. The information in this practice guide may not be current or complete, and accuracy is not guaranteed.**

Read the full practice guide here.

Learn more about Economic Liberties here.

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The American Economic Liberties Project works to ensure America’s system of commerce is structured to advance, rather than undermine, economic liberty, fair commerce, and a secure, inclusive democracy. Economic Liberties believes true economic liberty means entrepreneurs and businesses large and small succeed on the merits of their ideas and hard work; commerce empowers consumers, workers, farmers, and engineers instead of subjecting them to discrimination and abuse from financiers and monopolists; foreign trade arrangements support domestic security and democracy; and wealth is broadly distributed to support equitable political power.